United States v. Oklahoma Gas & Electric Co.

Decision Date06 March 1941
Docket NumberNo. 482.,482.
Citation37 F. Supp. 347
CourtU.S. District Court — Western District of Oklahoma
PartiesUNITED STATES v. OKLAHOMA GAS & ELECTRIC CO.

Charles E. Dierker, U. S. Atty., and George H. McElroy, Asst. U. S. Atty., both of Oklahoma City, Okl., for plaintiff.

Rainey, Flynn, Green & Anderson, of Oklahoma City, Okl., for defendant.

VAUGHT, District Judge.

The facts in this case are stipulated.

Prior to July 9, 1926, the State of Oklahoma, through its Highway Commission, applied to the Secretary of the Interior of the United States, petitioning him to grant permission in accordance with section 4 of the Act of March 3, 1901, 31 Stat. 1058, 1084, 25 U.S.C.A. § 311, to open and establish a public highway across certain land, which had been allotted to She-pah-tho-quah, a Kickapoo Indian, allottee No. 193, described as follows: "The North Half of the Northeast Quarter of Section 31, Township 11 North, Range 3 East of the Indian Meridian in Pottawatomie County, Oklahoma."

The course of the highway was described as follows: "Beginning at the NW Corner of said N/2NE/4 thence South along the West line of said N/2NE/4 a distance of 40 feet thence Southeasterly on a curve to the right having a radius of 1106.3 feet a distance of 573 feet thence S. 56° 56' E. a distance of 2004.3 feet to a point on the South line of said N/2NE/4 thence East along said South line a distance of 150 feet thence N. 56° 56' W. a distance of 2139.3 feet a distance of 360 feet to a point on the North line of said N/2NE/4 thence West along said North line a distance of 250 feet to point of beginning containing 4.66 acres, more or less, in addition to present right of way."

The application was duly considered by the Interior Department, and on June 1, 1927, a claim was filed by the United States on behalf of the heirs of the said allottee in the sum of $1,275, as compensation to said heirs for the establishment of said highway across their allotment, and said sum of $1,275 was paid by the State of Oklahoma.

On January 20, 1928, the Assistant Secretary of the Interior endorsed the following approval on the map of definite location accompanying the application of the State of Oklahoma:

"Department of the Interior "Jan 20 1928 1928.

"Approved subject to the provisions of the Act of March 3, 1901 (31 Stat.L., 1058-1084), Department regulations thereunder; and subject also to any prior valid existing right or adverse claim.

"/s/ John H. Edwards "Assistant Secretary"

Subsequent thereto and on the 9th day of October, 1936, the State Highway Commission of Oklahoma, acting under and by virtue of the laws of said state, granted to the defendant, Oklahoma Gas & Electric Company, a license and permit to erect, construct and maintain a system of wires, poles and other electrical equipment over and along said highway. Said license provided:

"That the Commission does by these presents grant to Oklahoma Gas & Electric Company of Shawnee, Oklahoma, a license to erect, construct and maintain a 4000 volt electric line along, upon or across the hereinafter described state highways for the purpose of transmitting, selling and using electricity."

* * * * * *

"This authority includes the right to cross all state highways and state roads intersecting any part of the route above described, and said authority also includes the right to maintain the necessary stubs and guy wires and to trim trees when and where necessary for proper clearance, but trees shall not be removed or trimmed without the written approval of the Commission. Said poles, posts and stubs are to be erected, or pipe lines installed, under the direction of the Commission and in the manner and locations as approved by him."

* * * * * *

"This license is granted subject to any and all claims made by adjacent property owners as compensation for additional burden on such adjacent and abutting property."

It is admitted that the lands, through which the highway in question was constructed, were restricted Indian lands.

The plaintiff brings this action, seeking a declaratory judgment that the erection of an electric line for the transmission of power for private, commercial purposes across the above described land, held in trust by the United States for the heirs of the deceased allottee, constituted an unwarranted use and servitude of said property, and that this court declare that said company has no easement over said land, and no right or authority to erect a power transmission line thereupon; that a mandatory injunction issue requiring said defendant to remove said poles and lines from said above described property; that the plaintiff have judgment against the defendant for the sum of $40 (or $5 a pole for eight poles erected on the above described property), for the costs of this action, and for all further proper relief in the premises.

There being no controversy over the facts, the only question for determination is whether or not the grant to the defendant by the State Highway Commission is sufficient authority for the defendant to erect its poles and transmission lines on said highway without the consent of the owner of the land through which said highway was constructed.

It is the contention of the plaintiff that in executing the grant to the State Highway Commission of Oklahoma to construct a public highway through said Indian allotment, there was at least an implied understanding that said highway would be used only for the purposes of pedestrians and vehicles, or the ordinary uses of a highway, and that the use of said right of way for the purposes of erecting a transmission line constituted an unwarranted use and servitude of said right of way.

It is the contention of the defendant that when the plaintiff, through its authorized agents, granted a right of way for purposes of constructing a state highway, it did so with full knowledge that the opening and establishment of the highway would be in accordance with the laws of the State of Oklahoma.

The Act of March 3, 1901, c. 832, § 4, 31 Stat. 1084, 25 U.S.C.A. § 311, provides: "The Secretary of the Interior is authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways, in accordance with the laws of the State or Territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indian under any laws or treaties but which have not been conveyed to the allottee with full power of alienation."

The Act of March 4, 1911, c. 238, 36 Stat. 1253, 43 U.S.C.A. § 961, provides for the granting of a right of way to individuals or corporations for the erection of electrical poles and lines through Indian reservations. This statute, however, has no application to the present controversy because the defendant did not seek to or erect a line of poles through an Indian reservation other than upon a public highway.

When the government granted the right of way, there were no limitations as to what should constitute the uses of the highway. That was apparently left to the determination of the State of Oklahoma. And the question narrows itself even more to the proposition as to what constitutes legal use of a state highway. Will the legal use be determined by federal law or by state law?

Laws of Oklahoma 1917, c. 230, p. 429, § 1, 69 Okl.St.Ann. § 4, provides: "Any person, firm or corporation organized under the laws of this State, or qualified to do business in this State to furnish light, heat or power by electricity, gas or oil, provided the same shall not apply to interstate pipe lines, shall have the right to use the public roads and highways in this State for the purpose of erecting poles or posts along or across the same, and sustain their wires and fixtures thereon, or to lay under the surface of said roads or highways pipes or conduits for the purpose of selling electricity and gas, or either, for light, heat or power, upon obtaining the consent of the Board of County Commissioners of the county or counties in which the public highways are proposed to be used for such purpose, * * *."

This legislative act of the State of Oklahoma was amended by the Laws of...

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2 cases
  • United States v. Oklahoma Gas Electric Co
    • United States
    • U.S. Supreme Court
    • February 15, 1943
    ...instituted this action. The District Court dismissed the complaint, and the Circuit Court of Appeals for the Tenth Circuit affirmed. 37 F.Supp. 347; 127 F.2d 349. The question appeared important to the administration of Indian affairs, and we granted certiorari. 317 U.S. 608, 63 S.Ct. 40, 8......
  • United States v. Oklahoma Gas & Electric Co.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 23, 1942

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